Citation Nr: 0417633
Decision Date: 06/30/04 Archive Date: 07/13/04
DOCKET NO. 95-15 899 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUES
1. Entitlement to service connection for headaches, to
include as due to an undiagnosed illness.
2. Entitlement to service connection for a respiratory
disorder, to include as due to an undiagnosed illness.
3. Entitlement to service connection for pain of multiple
joints, to include as due to an undiagnosed illness.
4. Entitlement to service connection for a low back
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. Pitts, Counsel
INTRODUCTION
The veteran served on active duty from September 1988 to
January 1994. His decorations and awards include the Combat
Action Ribbon, the Southwest Asia Service Medal with two
stars, and the Kuwait Liberation Medal.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of an October 1994 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) at
Louisville, Kentucky.
The claims file was transferred from that RO to the Muskogee,
Oklahoma RO.
In January 2002, after adjudicating other claims then pending
on appeal, the Board remanded the remaining claims to the RO
for the purpose of developing additional evidence. The case
was returned to the Board, which in March 2003 directed that
further development of evidence be accomplished by its
Evidence Development Unit (EDU), which it had established in
2002 pursuant to a revised regulation.
Thereafter, VA determined as a matter of policy and in light
of a judicial decision invalidating the revised regulation on
the ground that initial review by the Board of newly
developed evidence authorized there violated the right of
claimants to "one review on appeal to the Secretary" that
all development of evidence would be performed by first-tier
adjudicators in the Veterans Benefits Administration.
In July 2003 the Board remanded the claims to the RO for
further adjudicative action to include the new evidence that
had been developed by the EDU.
The issues of entitlement to service connection for headaches
to include as due to an undiagnosed illness, for pain of
multiple joints to include as due to an undiagnosed illness,
and for a low back disorder are addressed in the REMAND
portion of the decision below and are REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC. VA
will notify the veteran if further action is required on his
part.
FINDINGS OF FACT
1. The veteran had active service in the Southwest Asia
Theater of Operations during the Persian Gulf War.
2. By his own account in written statements and to medical
care providers who have examined him, the veteran has had
shortness of breath accompanied by tightness in his chest and
fatigue, particularly with exertion.
3. Service medical records and VA examination reports show
that these respiratory symptoms were confirmed after
objective evaluation of the veteran by medical care
providers.
4. Diagnostic impressions citing shortness of breath and/or
other symptoms of respiratory illness are stated in service
medical records and VA examination reports, but a clinical
diagnosis is not ascribed in these reports to the respiratory
symptom or symptoms in concern.
5. The record contains no affirmative proof that the veteran
did not incur an undiagnosed illness manifested by shortness
of breath and related symptoms while on active duty in the
Southwest Asia Theater of Operations during the Persian Gulf
War or that his respiratory condition was caused by his own
misconduct or a supervening event occurring between the
completion of his Persian Gulf War service and the onset of
that condition.
CONCLUSION OF LAW
The respiratory disorder currently exhibited by the veteran
represents an undiagnosed illness attributable to his service
in the Southwest Asia Theater of Operations during the
Persian Gulf War. 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R.
§ 3.317 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The veteran had active service in the Southwest Asia Theater
of Operations during the Persian Gulf War. His Certificate
of Discharge from Active Duty reflects that his decorations
and awards include the Southwest Asia Service Medal with two
stars and the Kuwait Liberation Medal.
In the VA Form 21-526, Application for Compensation, that he
filed in this matter in February 1994, the veteran asserted
that he suffered from "breathing problems" that had begun
in approximately 1993. In written statements that he has
submitted while prosecuting his claim for compensation, he
has maintained that he began to have symptoms of respiratory
illness approximately two years after he returned from Saudi
Arabia. The veteran has said that his service in the
Southwest Asia Theater of Operations during the Persian Gulf
War took place from August 1990 through March 1991.
There are no service medical records showing that while in
the Southwest Asia Theater of Operations, he complained of,
or was found by health care providers to have, symptoms
referable to a respiratory disorder. However, a service
medical record prepared at Camp Pendleton, California in May
1991 states:
...MEMBER WAS EXPOSED TO HAZARDOUS MATERIAL
IN THE KUWAIT/SAUDI THEATER OF SUPPORT OF
OPERATION DESERT SHIELD/DESERT STORM
BETWEEN 25 FEB 91-29 MAR 91. MEMBER WAS
EXPOSED TO SIGNIFICANT LEVELS OF SULFUR
DIOXIDE AND HYDROGEN SULFIDE GAS ...DUE TO
OILWELL FIRES. THIS EXPOSURE MAY BE OF
CLINICAL SIGNIFICANCE SHOULD THE MEMBER
DEVELOP ANY RESPIRATORY ILLNESSES. THE
POTENTIAL HAZARDS OF THE ABOVE TOXINS
WERE EXPLAINED TO THE MEMBER....LAB TESTS,
PULMONARY FUNCTION TESTS, AND X-RAYS WERE
NOT AVAILABLE DUE TO COMBAT RESTRICTIONS.
Service medical records dated in 1993 show that the veteran
received medical attention on more than one occasion for
breathing problems. These service medical records show that
he regularly complained that he had breathing problems
accompanied by tightness in his chest and fatigue. An August
993 clinical note states an assessment of "DOE [dyspnea on
exertion] ?" A September 1993 note indicates that cardiac
and pulmonary exercise studies that the veteran underwent at
that time were "[n]ormal...for a trained athlete." The
report concerning pulmonary function tests that the veteran
underwent in September 1993 indicates that spirometry and
lung volumes were "[n]ormal."
A November 1993 clinical note reflects that the veteran
reported that he had shortness of breath and fatigue after
beginning physical activity and that those symptoms would
subside when he rested. The note indicates that a physical
examination performed at that time to assess the veteran's
respiratory condition was unremarkable and refers to the
results of the September 1993 testing. The assessment stated
in the note was "subjective" shortness of breath
"exacerbated" with exercise.
After the claim was filed, VA afforded the veteran a number
of medical examinations, the reports of which are in the
claims file. During these evaluations, the reports show, the
veteran complained of shortness of breath accompanied by
tightness in his chest and fatigue.
A VA general medical examination was performed in March 1994.
The report concerning the examination states a diagnostic
impression of "[s]hortness of breath with no objective
evidence of cardiopulmonary disease at this point." In
commentary, the examiner said that the most likely cause of
the shortness of breath was that the veteran was overweight
but pulmonary function tests would be conducted to rule out
any restrictive airway disease. In an addendum, the examiner
reported that the pulmonary function tests (the reports
concerning which were included with the examination report)
were "entirely normal showing no evidence of obstructive or
restrictive lung disease."
A chest x-ray performed by VA on the day after the date of
the March 1994 VA general medical examination disclosed, the
radiology report reflects, the presence of "[p]ostoperative
changes in the right paravertebral lung with multiple opaque
surgical vascular clips extending over a wide range
demonstrated."
Testing for pulmonary functioning before and after use of a
bonchodilator and for blood gasses was performed in March
1994 several days after the date of the March 1994 VA general
medical examination. The report concerning this testing
indicates that spirometry was normal, there was "no
significant improvement" with use of the bronchodilator,
lung volumes were normal, and "blood gasses on room air
reveal[ed] hyoxemia for age."
A VA Persian Gulf War Registry examination was performed in
April 1994. The report concerning this examination indicates
that the veteran's complaints were fatigue and shortness of
breath. The examination report cited the March 1994 chest x-
ray with its other data and findings. The examination report
indicates that all of the veteran's systems, including
respiratory, were normal. A single diagnosis was stated in
the examination report, chronic fatigue.
A VA general medical examination was performed in November
1994. The examination report shows that the veteran said
that at age six, he had a right-side thoracotomy to remove
what turned out to be a ganglioneuroma after a routine chest
x-ray revealed a shadow in his right chest and did not
experience symptoms or any functional impairment after the
procedure. The examination report indicates that assessment
of the veteran's respiratory system was made through physical
examination, and states: "[The cite of the thoracotomy] is
well-healed and nontender. The lungs are clear to percussion
and auscultation. The diaphragm moves equally and [amply].
There are no indications of tumors in the neck, etc., and the
mediastinum is not enlarged."
A radiology report indicates that a chest x-ray performed in
conjunction with the examination disclosed evidence of the
previous right-side thoracotomy. For the respiratory system,
the examination report stated a diagnosis of "[p]ost-
operative history of thoracotomy, age six, for removal of
asymptomatic ganglioneuroma and without residuals or
functional impairment."
The report of a VA examination of the joints that was
provided to the veteran in August 1998 reflects that the
examination included an evaluation of his respiratory system
through physical examination. The examination report states
of the respiratory examination: "[T]he chest has full
respiratory excursion. Lung sounds are clear to ascultation
with quiet breathing. However, when the veteran is asked to
inspire fully and expire quickly, there are end expiratory
wheezes throughout all lung fields."
A chest x-ray was performed in conjunction with the
examination. The radiology report indicates that the lumgs,
heart, mediastinum, diaphragm, and pulmonary vascularity were
within normal limits, that there was no evidence of pleural
effusion or pneumothorax, that surgical clips were seen
overlying the chest, and that the visible bony thorax
appeared to be unremarkable. Pulmonary function testing was
also performed in conjunction with the examination. Among
the diagnoses stated in the examination report is that
concerning the veteran's respiratory system: "DOE [dyspnea
on exertion], with wheezing, [consistent with] airway
disease, see pulmonary function tests."
Another VA general medical examination was performed in June
2003, as the Board had instructed to be done when it remanded
this and several of the veteran's other claims in January
2002. The examination report notes that the veteran reported
that he began to have extreme shortness of breath, wheezing,
difficulty breathing, and tightness in his chest in 1993 and
that this condition worsened with physical activity and
improved with rest. The examination report indicates that
physical examination to evaluate the veteran's respiratory
health was performed, and states: "The veteran's heart...rate
and rhythm [were] regular. Negative for murmurs or gallops.
Chest wall was negative for deformity. There were no heaves
or thrills present. Lungs were clear to auscultation
bilaterally. Negative for wheezing, rales, or rhonchi."
A chest x-ray was performed in conjunction with the
examination, and the radiology report states an impression of
"[p]ost right thoracotomy, normal chest." Pulmonary
function testing also was performed in conjunction with the
examination. Among the diagnoses contained in the
examination report, that concerning the veteran's respiratory
system states: "[s]ymptomatology of chronic intermittent
shortness of breath of unknown etiology. Chest x-ray and
pulmonary function tests within normal limits."
Post-service VA outpatient treatment records obtained after
the claim was filed contain findings concerning the veteran's
respiratory condition. An October 1994 record cites among
the veteran's diagnoses right hilar fullness revealed by a
chest x-ray and notes that it is of questionable etiology. A
May 1995 pulmonary clinic record also states the diagnosis of
right hilar fullness signified by chest x-ray.
Analysis
The Board finds that this evidence warrants the granting of
service connection for a respiratory condition as an
undiagnosed illness attributable to the veteran's service in
the Southwest Asia Theater of Operations during the Persian
Gulf War.
Claims for disability benefits for undiagnosed illness
incident to qualifying service in the Southwest Asia Theater
of Operations are governed by special provisions of law.
A "Persian Gulf War veteran" (i.e., one who served on
active duty in the military, naval, or air service in the
Southwest Asia theater of operations during the "Persian
Gulf War") who exhibits objective indications of chronic
disability resulting from an undiagnosed illness (i.e., one
that by history, physical examination, and laboratory tests
cannot be attributed to any known clinical diagnosis) either
for the first time during the Persian Gulf War service or to
a degree of 10 percent or more not later than December 31,
2006 is presumed entitled to service connection and
compensation for that undiagnosed illness. 38 U.S.C.A.
§ 1117; 38 C.F.R. § 3.317(a).
"Objective indications of chronic disability" include both
"signs," in the medical sense of objective evidence
perceptible to an examining physician, and other, non-medical
indicators that are capable of independent verification.
38 C.F.R. § 3.317(a).
"Chronic" disabilities include disabilities that have
existed six months or more and disabilities that exhibit
intermittent periods of improvement and worsening over a six-
month period." Id.
If these criteria are satisfied, then service connection will
be granted for disability attributable to undiagnosed illness
unless (i) there is affirmative evidence that the undiagnosed
illness was not incurred during the Gulf War service, or (ii)
there is affirmative evidence that the undiagnosed illness
was caused by a supervening event or condition that occurred
between the veteran's most recent departure from active duty
in the Southwest Asia theater of operations during the
Persian Gulf war and the onset of the illness, or (iii) there
is affirmative evidence that the undiagnosed illness is the
result of the veteran's own misconduct, including the abuse
of alcohol or drugs. 38 C.F.R. § 3.317(a).
The criteria for service connection under these provisions
are met in this case. The veteran is a Gulf War veteran.
Service department records confirm that he served on active
duty in the Southwest Asia Theater of Operations during the
Persian Gulf War. The lay and medical evidence of record
indicates that he has a chronic respiratory condition marked
by shortness of breath and related symptoms of respiratory
illness.
His account of his respiratory problems is supported by
objective military and VA medical evaluation which, while not
arriving at a clinical diagnosis for his respiratory
symptoms, have concluded that he has chronic respiratory
shortness of breath and dyspnea on exertion. The evidence
shows that the veteran's chronic respiratory problems have
persisted for more than six months. The Board finds from the
evidence that the chronic respiratory problems have been
disabling to a degree of at least 10 percent.
The governing statute and regulation cite certain types of
signs and symptoms deemed particularly likely to point to
undiagnosed illness when found in a Gulf War veteran, and one
of these is "[s]igns or symptoms involving the upper or
lower respiratory system." 38 U.S.C.A. § 1117(g)(8);
38 C.F.R. § 3.317(b)(8). With this guidance in mind, the
Board finds that the medical evidence of record points to the
likelihood that the veteran's chronic shortness of breath and
related respiratory symptoms are attributable to an
undiagnosed illness, that is, one that by history, physical
examination, and laboratory tests cannot be attributed to any
known clinical diagnosis. 38 C.F.R. § 3.317(a).
There is no affirmative evidence that the respiratory
disability that has been identified by objective medical
evaluation was not incident to the veteran's Persian Gulf War
service, or was caused by a supervening event or condition
that occurred between the veteran's most recent departure
from active duty in the Southwest Asia theater of operations
during the Persian Gulf war and the onset of the illness, or
was the result of the veteran's own misconduct. 38 C.F.R.
§ 3.317(a).
Therefore, service connection will be granted for a
respiratory disorder as due to undiagnosed illness.
38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.
This appeal is subject to the Veterans Claims Assistance Act
of 2000, legislation passed in November 2000 requiring VA to
provide certain notice and assistance to claimants of VA
benefits before deciding their claims. The Board, when a
claim is before it on appeal, considers whether any action is
required under the VCAA and will the claim for completion of
any such action. See Charles v. Principi, 16 Vet. App. 370,
373-74 (2002). With respect to the instant claim, however,
because it is granted, it has not been necessary for the
Board to perform this review.
ORDER
Entitlement to service connection for a respiratory disorder
as due to an undiagnosed illness is granted.
REMAND
This matter must be afforded expeditious treatment by the
Veterans Benefits Administration (VBA) AMC. The law requires
that all claims that are remanded by the Board or by the
United States Court of Appeals for Veterans Claims (CAVC) for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans Benefits
Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat.
2651 (2003) (codified at 38 U.S.C. §§ 5109B, 7112).
The claims of entitlement to service connection for
headaches, to include as due to undiagnosed illness, for pain
of multiple joints, to include as due to undiagnosed illness,
and for a low back disorder are remanded because notice and
development action required by applicable law remains to be
performed. Under the VCAA, VA has a duty to give claimants
certain notice concerning the evidence that is needed to
substantiate their claims. The notice furnished by VA must
inform the claimant, and the claimant's representative, if
any, of any information and of any medical and lay evidence
that VA determines is necessary to substantiate the claim.
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio, 16
Vet. App. at 186-87.
The notice must be furnished upon receipt of a complete or
substantially complete application. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b)(1). The notice must explain which
evidence the claimant is finally responsible for obtaining
and which evidence VA will attempt to obtain on the
claimant's behalf. Quartuccio, 16 Vet. App. at 186. The
notice must request the claimant to provide to VA any
evidence in the claimant's possession that pertains to the
claim. 38 U.S.C.A. § 5103(g); 38 C.F.R. § 3.159(b)(1).
In April 2002, the RO issued a VCAA notice letter to the
veteran in connection with his claim that was only marginally
compliant with the VCAA. See Quartuccio. The notice did not
fully describe the kind of evidence that was needed to
substantiate the claims.
The April 2002 notice letter described only evidence needed
to establish service connection under the general ground of
entitlement, which is relevant to all three of the claims.
See Combee v. Brown, 34 F. 3d 1039, 1042 (Fed. Cir. 1994)
(when a veteran applies for service connection under
38 U.S.C.A. § 1117 and 38 C.F.R. § 3,317 but is found to have
a disability attributable to a known clinical diagnosis,
there must be further consideration of the claim under the
general theory of entitlement to service connection).
However, the April 2002 notice letter did not describe the
evidence that was needed to substantiate the claims under
section 1117, Title 38, United States Code and section 3.317,
Title 38, Code of Federal Regulations, which are the
provisions governing service connection for disability due to
undiagnosed illness in "Persian Gulf War veterans," that
is, veterans who served on active duty in the military,
naval, or air service in the Southwest Asia theater of
operations "during the "Persian Gulf War"). See
38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.
The claims of entitlement to service connection for headaches
and pain of multiple joints, respectively, are potentially
subject to this law because they may concern an "undiagnosed
illness," as is required for application of this law.
Furthermore, while referring in general terms to the
presumption in law that certain disabilities were incurred
during service because manifested to a compensable degree
within time periods after service prescribed by that law, the
April 2002 notice letter did not apprise the veteran that his
claim for service connection for joint and a low back
disorders, respectively, were subject to this law and
therefore would be strengthened by any evidence that he
exhibited compensable arthritis within one year following his
separation from service. See 38 U.S.C.A. § 1112 (West 2002);
38 C.F.R. § 3.307, 3.309 (2003). Likewise, the April 2002
notice letter did not clearly describe the respective
responsibilities of VA and the veteran for obtaining evidence
and did not ask the veteran to provide VA with all evidence
relevant to the claims that he had in his possession at that
time.
On remand of the claims, the RO must issue a notice to the
veteran that complies fully with the requirements of the
VCAA.
The claims are remanded also because new VA examinations must
be performed before they are decided. Under the VCAA, VA has
a duty to secure a medical examination or opinion if such is
necessary to decide a claim for benefits. 38 U.S.C.A.
§ 5103(A)(d)(1); 38 C.F.R. § 3.159(c)(4).
A VA examination that was performed in June 2003 pursuant to
the instructions issued by the Board when it remanded these
claims and that concerning the veteran's respiratory disorder
in June 2003 included consideration of the claimed headache,
joint, and low back disorders. However, the Board finds that
as it concerns the claimed headache, joints, and low back
disorders, the examination report is inadequate for rating
purposes.
The examination report states the examiner's conclusion that
a diagnosis of "sinus" headache is not supported by the
medical findings and notes that the veteran's headache
symptoms are "[n]on-verifiable." However, the examination
report fails to reconcile these findings with, or to address,
a diagnosis of "migraine cephalgia" stated in the report of
the VA general medical examination that was performed in
November 1994.
Nor does the examination report explain why diagnostic
testing was not needed in order that the examiner might
ascertain whether the veteran could be having migraine or
another type of headache or one not attributable to a known
clinical diagnosis. The examination report fails to clarify
whether the veteran has headaches that represent an
undiagnosed illness incident to his Persian Gulf War service
or a disorder to which a clinical diagnosis should be
ascribed. The Board notes that the legislation authorizing
service connection for undiagnosed illness caused by Persian
Gulf War service cites among certain types of signs and
symptoms deemed particularly likely to point to undiagnosed
illness in a Persian Gulf War veteran those having to do with
"headache." 38 U.S.C.A. § 1117(g)(3); see 38 C.F.R.
§ 3.317(b)(3).
The examination report states the examiner's conclusion that
the veteran exhibited "[m]ultiple joint arthragias of
unknown etiology" and that his joint pain was "caus[ing]
mild functional impairment." At the same time, the examiner
noted there that "[t]he veteran has no verifiable symptoms
of throbbing joint pain [emphasis added]." The examination
report fails to clarify whether the veteran has observable
signs and symptoms of joint pain and if so, whether the joint
pain represents an undiagnosed illness incident to his
Persian Gulf War service or a disorder to which a clinical
diagnosis should be ascribed.
The Board notes that the legislation authorizing service
connection for undiagnosed illness caused by Persian Gulf War
service cites among certain types of signs and symptoms
deemed particularly likely to point to undiagnosed illness in
a Persian Gulf War veteran those having to do with "joint
pain." 38 U.S.C.A. § 1117(g)(5); see 38 C.F.R.
§ 3.317(b)(5).
The examination report, while containing findings suggesting
that the veteran exhibited no symptoms of a low back
disorder, including any presented on x-ray of the low back,
did not state the examiner's opinion as to whether the
veteran had a low back disorder or not.
As the Board pointed out in remanding the claim concerning a
low back disorder in January 2002, the report concerning the
VA general examination performed in November 1994 states a
diagnosis of "[m]ild chronic low back pain, i.e., strain,
minimal." Low back strain is a recognized disability under
VA's Schedule for Rating Disabilities. The June 2003 VA
examination report should have addressed, and attempted to
reconcile its findings with the November 1994 VA examination
finding. Furthermore, the June 2003 VA examination report
failed to provide an opinion about whether there was a
relationship between any low back disorder exhibited by the
veteran and an incident of his service, even though his
service medical records show that he received medical
attention on more than one occasion for low back problems.
The Board notes that the June 2003 VA examination seems to
have been performed by a physician's assistant, although co-
signed by an attending physician. However, the complexities
of the medical evidence and medical questions in this case
require examination of the veteran by physicians with
appropriate specializations.
The VA examinations to be obtained on remand should be
performed only after the RO has made all appropriate efforts
to associate with the claims file all outstanding VA medical
records, and any other medical records identified by the
veteran on remand, that are pertinent to the claim. See
Green v. Derwinski, 1 Vet. App. 121, 124 (1991).
Under the VCAA, VA has a duty to make reasonable efforts to
obtain records pertinent to the claim. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159(c)(1)-(3). When records needed to decide a
claim for VA benefits are in the custody of a federal
department or agency, VA must continue to try to obtain them
until it has been successful unless it is reasonably certain
that they do not exist or that further efforts to obtain them
would be futile. 38 U.S.C.A. § 5103A; 38 C.F.R.
§ 3.159(c)(2). The VCAA provides that the duty to obtain
records applies when the claimant, after being requested to
do so by VA, "adequately identifies [such records] to the
Secretary and authorizes the Secretary to obtain" them.
38 U.S.C.A. § 5103A(b). Under the VCAA, VA must give
appropriate notice to the claimant if it is unable to obtain
the records. 38 C.F.R. § 3.159(e).
Accordingly, this case is REMANDED for the following actions:
1. The appellant has the right to submit
additional evidence and argument on the
matter or matters the Board has remanded
to the VBA AMC. Kutscherousky v. West,
12 Vet. App. 369 (1999).
2. The VBA AMC must review the claims
file and ensure that all VCAA notice
obligations have been satisfied in
accordance with 38 U.S.C.A. §§ 5102,
5103, and 5103A (West 2002), Veterans
Benefits Act of 2003, Pub. L. 108-183
,§ 701, 117 Stat. 2651, ___ (Dec. 16,
2003) (codified at 38 U.S.C.A. § 5103),
and any other applicable legal precedent.
Such notice should specifically apprise
the appellant of the evidence and
information necessary to substantiate his
claims, including evidence that could
entitle him to the presumption afforded
by 38 U.S.C.A. § 1112 and 38 C.F.R.
§§ 3.307 and 3.309 and evidence
satisfying the ground of service
connection afforded Persian Gulf War
veterans by 38 U.S.C.A. § 1117 and
38 C.F.R. § 3.317; should inform him
whether he or VA bears the burden of
producing or obtaining that evidence or
information; should ask him to submit to
the RO all relevant evidence in his
possession; and should apprise him of
the appropriate time limitation within
which to submit any evidence or
information. 38 U.S.C.A. § 5103(a) and
(b) (West 2002); Quartuccio v. Principi,
16 Vet. App. 183 (2002).
A copy of the notice must be sent to the
veteran's representative.
3. The VBA AMC should contact the
veteran and request that he identify all
healthcare providers, VA and non-VA,
inpatient and outpatient, who have
treated him for his low back, joints, and
headaches since January 1994. Then, the
VBA AMC should make efforts to secure, or
to assist the veteran in securing in the
case of private medical records, all such
records identified by the veteran that
are not already on file.
As well, the VBA AMC should make efforts
to secure, or to assist the veteran in
securing in the case of private records,
all records identified by the veteran in
response to the notice requested in
Paragraph 2, above.
The VBA AMC should document in the claims
file the action that it took to obtain
this evidence and should provide
appropriate notice to the veteran and his
representative concerning records that
could not be obtained.
All identified private treatment records
should be requested directly from the
healthcare providers.
Regardless of the veteran's response, the
VBA AMC should obtain all outstanding VA
treatment reports.
All information which is not duplicative
of evidence already received should be
associated with the claims file.
4. Thereafter, the VBA AMC should
schedule the veteran for the VA
examinations described below.
The claims file and a separate copy of
this remand must be made available to and
reviewed by the examiners prior and
pursuant to conduction and completion of
the examination(s). The examiners must
annotate the examination reports that the
claims file was in fact made available
for review in conjunction with the
examinations. Any further indicated
special studies must be conducted.
The examiners must review all
documentation in the claims file
pertinent to the service-connected
disabilities, to include any new medical
records, employment records, or other
evidence obtained as a result of the
directives in this Remand.
All diagnostic studies and tests thought
necessary by an examiner should be
performed.
(A) Neurological examination
This must be performed by a neurologist.
In the examination report, the examiner
should provide an opinion as to whether
the headaches that have been reported by
the veteran are attributable to a known
clinical diagnosis and, if the opinion is
in the affirmative, state the diagnosis
and provide an opinion as to whether it
is at least as likely as not (i.e., there
is at least a 50 percent likelihood) that
the diagnosed disorder is etiologically
related to the veteran's service, to
include service during the Persian Gulf
War. The opinion must address the
diagnosis of "migraine cephalgia"
contained in the November 1994 VA
examination report.
If the examiner concludes that by
history, physical examination, and
laboratory tests, the veteran's headaches
are not attributable to a known clinical
diagnosis, the examiner should provide an
opinion in the examination report as to
(i) whether there are verifiable signs
and symptoms of a chronic disability (to
include one lasting 6 months or more or
one exhibiting intermittent periods of
improvement or worsening over a 6-month
period) associated with headaches, (ii)
the earliest date those signs and
symptoms of disability first became
manifest, and (iii) whether it appears
that the undiagnosed illness was not
incurred during or as a result of his
Persian Gulf War service.
(B) Orthopedic examination
This must be performed by an orthopedic
surgeon or other appropriate medical
specialist.
(1) In the examination report, the
examiner should provide an opinion as to
whether the pain in multiple joints that
has been reported by the veteran is
attributable to a known clinical
diagnosis and, if the opinion is in the
affirmative, state the diagnosis and
provide an opinion as to whether it is at
least as likely as not (i.e., there is at
least a 50 percent likelihood) that the
diagnosed disorder is etiologically
related to the veteran's service, to
include service during the Persian Gulf
War and an opinion as to whether the
veteran manifested arthritis of any joint
at any time within the one-year period
following his separation from service in
January 1994.
If the examiner concludes that by
history, physical examination, and
laboratory tests, the veteran's pain in
multiple joints is not attributable to a
known clinical diagnosis, the examiner
should provide an opinion in the
examination report as to (i) whether
there are verifiable signs and symptoms
of a chronic disability (to include one
lasting 6 months or more or one
exhibiting intermittent periods of
improvement or worsening over a 6-month
period) associated with the pain in
multiple joints, (ii) the earliest date
those signs and symptoms of disability
first became manifest, and (iii) whether
it appears that the undiagnosed illness
was not incurred during or as a result of
his Persian Gulf War service.
(2) In the examination report, the
examiner should
(i) state whether the veteran has a low
back disorder apart from any manifested
by complaints of pain in multiple joints
of the body, and if so, provide a
diagnosis or diagnoses for this disorder,
and (ii) provide an opinion as to whether
his low back disorder is etiologically
related to his service, to include his
service in the Persian Gulf War, and
(iii) provide an opinion as to whether
the veteran manifested arthritis of the
lower spine at any time within the one-
year period following his separation from
service in January 1994.
Any opinions expressed by the examiners
must be accompanied by a complete
rationale.
5. Thereafter, the VBA AMC should review
the claims file to ensure that all of the
foregoing requested development has been
completed.
In particular, the VBA AMC should review
the requested examination reports and
required medical opinions to ensure that
they are responsive to and in complete
compliance with the directives of this
remand and if they are not, the VBA AMC
should implement corrective procedures.
The Board errs as a matter of law when it
fails to ensure compliance, and further
remand will be mandated. Stegall v.
West, 11 Vet. App. 268 (1998).
6. After undertaking any further
development deemed essential in addition
to that specified above, the VBA AMC
should readjudicate the claims of
entitlement to service connection for
headaches, to include as due to an
undiagnosed illness, for pain of multiple
joints, to include as due to an
undiagnosed illness, and for a low back
disorder.
If the benefits requested on appeal are not granted to the
veteran's satisfaction, the VBA AMC should issue a
supplemental statement of the case (SSOC). The SSOC must
contain notice of all relevant actions taken on the claims
for benefits, to include a summary of the evidence and
applicable law and regulations pertinent to the claims
currently on appeal. A reasonable period of time for a
response should be afforded. Thereafter, the case should be
returned to the Board for final appellate review, if in
order. By this remand, the Board intimates no opinion as to
any final outcome warranted. No action is required of the
veteran until he is notified by the VBA AMC; however, the
veteran is hereby notified that failure to report for any
scheduled VA examination(s) without good cause shown may
adversely affect the outcome of his claims of entitlement to
service connection, and may result in their denials.
38 C.F.R. § 3.655 (2003).
______________________________________________
RONALD R. BOSCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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